Defending Bergdahl: Can Eugene Fidell Clear Freed Soldier's Name?

byErin McClam

A frame grab from the Taliban propaganda video released Dec. 25, 2009 purportedly showing U.S. soldier Pfc. Bowe Bergdahl, 23, of Ketchum Idaho, taken from a video made available by IntelCenter. IntelCenter via AP file

He has eagerly taken on the most complex legal questions of the 21st-century American military — the future of Guantanamo Bay, the fate of Private Chelsea Manning, the role of commanders in prosecuting sexual assault.

And now he’s Bowe Bergdahl’s lawyer.

Eugene R. Fidell, a former judge advocate in the Coast Guard who teaches military justice at Yale Law School, will represent the sergeant and former Taliban captive as the Army completes an investigation into whether he deserted in 2009.

Fidell, in an interview Wednesday with NBC News, would not discuss strategy. But he said that Bergdahl has been “entirely cooperative with the government” since he was returned to the United States in May in exchange for five Guantanamo detainees.

“He’s very grateful to President Obama for having saved his life,” Fidell said.

Fidell, 69, is called on frequently by the press for analysis of thorny questions of military justice. That has included the case of Bergdahl, who disappeared from his outpost in Afghanistan five years ago and was captured by the Taliban.

Fellow soldiers have accused Bergdahl of desertion. Fidell told NBC News in June that Bergdahl could get five years in prison, but he said that Bergdahl’s five years in captivity could be a mitigating factor.

“You typically don’t throw the book at people” who have been prisoners, he said at the time.

Fidell, who will work pro bono, said Wednesday that he was flattered to have been approached to represent Bergdahl, though he would not give details. People who know Fidell said it was no surprise that he accepted such a prominent and bitterly disputed case.

Last year, he was sharply critical of the military for shrouding in secrecy the pretrial hearings for Chelsea Manning, who was later convicted of espionage for passing military secrets to WikiLeaks.

And 10 years ago, he defended Capt. James Yee, a Muslim Army chaplain who spent 76 days in custody after the military linked him to a possible espionage ring at Guantanamo.

The Army later dismissed criminal charges, and Yee got a reprimand. Fidell told reporters that Yee was suspected because of his faith and was the victim of a “drive-by act of legal violence.”

The Bergdahl case, which touches on the brotherhood of soldiers, the military pledge to leave no soldier behind and the end of the long war in Afghanistan, is a matter of even higher profile.

Perfect for Fidell, said Matthew Freedus, a partner at the Washington law firm that bears Fidell’s name.

“This is right up his alley,” said Freedus, who regards Fidell as a mentor. “It’s military law, and it’s a case that is under the public spotlight. Not very many attorneys in any field are comfortable handling both spheres.”

Fidell and Freedus won a 2009 Supreme Court case on behalf of a Navy enlistee who argued to have a military conviction voided. The enlistee said he got bad advice about the consequences of a guilty plea from a severely alcoholic lawyer.

Freedus described Fidell as an exceptional writer with a strong spirit of the public interest who has devoted a career of scholarship to military justice, not just in the United States but around the world.

“He’s the best in his field,” Freedus said. “He’s the whole package.”

On Guantanamo detainees, Fidell has written that President Barack Obama should send federal judges there to resolve the remaining cases there under civilian rules, thereby encouraging Congress to “take a fresh look at the other obstacles to closing the prison.”

He wrote elsewhere that the detainees “in the eyes of the world have become symbols of a failed system.”

And he has argued that lawyers outside the military chain of command should decide who should be prosecuted for crimes, including sexual assault. Commanders, Fidell wrote last year, should only handle minor disciplinary matters.

That position set him apart from the other 14 people appointed to serve on a special advisory panel created by Defense Secretary Leon Panetta in August 2012 to review military justice, recalled Walter Huffman, a co-chair.

Huffman, a former Army judge advocate general and dean emeritus of the law school at Texas Tech, emphasized his strong difference with Fidell on commanders’ role in prosecution.

He described Fidell’s position as “way out of the mainstream.” He also said Fidell could be at a disadvantage in the Bergdahl case because he is something of an outsider in the actual administration of military trials.

Still, he said, “Gene Fidell serves a purpose. The purpose is that he questions the status quo.”

“Instead of bouncing along thinking this is the way it’s always been, he makes you go back and think,” Huffman said in an interview. “That’s a valuable function, I think.”